Penal law §§110.00 and 130.35

Respondent now moves to dismiss this action (for civil management pursuant to New York Mental Hygiene Law Section 10.06(a)), “based upon the constitutionally flawed structure of Article 10 and its flawed application to Respondent.”

A New York Sex Crime Lawyer said that, on March 14, 2007, former Governor Spitzer signed the Sex Offender Management and Treatment Act (“SOMTA”) (thereby adding Article 10 of the New York Mental Hygiene Law (“MHL”), creating a new legal mechanism to address the problem of managing repeat sexual offenders. Although New York already had a statute addressing the involuntary commitment of those determined to be “mentally ill”, the New York Legislature found that “recidivistic sex offenders pose a danger to society that should be addressed through comprehensive programs of treatment and management.” In extreme cases (i.e., those involving the most dangerous recidivistic sex offenders), the Legislature determined that confinement would be extended by civil process, in order to provide these individuals with such treatment and to protect the public from their recidivist conduct. It is beyond cavil that individuals who are mentally ill and dangerous, and predisposed to committing sexual offenses, pose serious risks to our communities. Nevertheless, in the case of confinement, due process “requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”

The issue in this case is whether respondent’s motion to dismiss this action (for civil management pursuant to New York Mental Hygiene Law Section 10.06(a)), “based upon the constitutionally flawed structure of Article 10 and its flawed application should be granted.

In order to identify and effectuate treatment for these individuals, the Legislature authorized the Commissioner of the Office of Mental Health (“OMH”) to designate personnel of various disciplines (including, among others, mental health professionals) to provide a preliminary review of the need for detained sex offenders to be evaluated for purposes of civil management. A “sex offender requiring civil management” is defined as a detained sex offender who suffers from a mental abnormality.

As is relevant here, “a detained sex offender” means a person who is in the care, custody, control or supervision of an agency with jurisdiction, with respect to a sex offense, in that the person stands convicted of a sex crime offense and is currently serving a sentence for such offense or for a related offense. A “mental abnormality” is defined as a congenital or acquired condition, disease or disorder that affects the emotional, cognitive or volitional capacity of a person in a manner that predisposes him to the commission of conduct constituting a sex crime offense, and that results in that person having serious difficulty in controlling such conduct.

Article 10, as applied to currently confined persons such as Respondent, was designed to initiate a specific series of procedures. Pursuant to MHL §10.05(a), a case review panel must be established to determine, upon referral from an agency with jurisdiction over a particular criminal respondent, whether that individual is a sex offender requiring civil management. If the case review team determines that a respondent is a sex offender requiring civil management, it must notify the respondent and the Attorney General in writing. Based upon the case review team’s finding, the Attorney General may file a sex offender civil management petition in the Supreme Court of the County where the respondent is located.

Within thirty (30) days after the sex offender civil management petition is filed, the court must conduct a hearing without a jury to determine whether there is probable cause to believe that the respondent is a sex offender requiring civil management. Within sixty (60) days after the court determines probable cause, the court must then conduct a jury trial to determine whether the respondent is a detained sex offender who suffers from a mental abnormality. The jury (or the court if a jury trial is waived) must determine by clear and convincing evidence whether the respondent is a detained sex offender who suffers from a mental abnormality. The burden of proof is on the Attorney General, and a jury determination must be by unanimous verdict. Assault was not charged.

If such a determination is made, then the judge “shall consider whether the respondent is a dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision.” Upon such a finding, the respondent “shall be committed to a secure treatment facility until such time as he or she no longer requires confinement. Once committed, the individual shall have a yearly psychiatric exam, and a right to be examined by an independent examiner. In certain circumstances, the detained individual has a right to petition the court for an evidentiary hearing, and detention will continue only if the Attorney General can demonstrate by clear and convincing evidence that the criminal respondent is still a dangerous sex offender requiring confinement. While committed, sex offenders shall be kept in secure treatment facilities.

If the judge does not find that the respondent is a dangerous sex offender requiring confinement, “then the court shall make a finding of disposition that the respondent is a sex offender requiring strict and intensive supervision, and the respondent shall be subject to a regimen of strict and intensive supervision and treatment.” In making such a finding, the court shall consider “the conditions that would be imposed upon the respondent if subject to a regimen of strict and intensive supervision, and all available information about the prospects for the respondent’s possible reentry into the community.” An individual may petition every two years for modification or termination of the strict and intensive supervision. Upon receipt of a petition for termination, the court may, in its discretion, hold a hearing where the Attorney General must show by clear and convincing evidence that the individual is still a sex offender in need of civil management.

At the time of the filing of the petition herein, Respondent was serving a sentence upon conviction by plea to one (1) count of attempted rape in the first degree, in violation of penal law §§110.00 and 130.35. On June 17, 1999, Respondent was sentenced to a total period of nine (9) years’ incarceration and five (5) years post-release supervision. On November 10, 2007, Respondent was scheduled to be released from incarceration at Fishkill Correctional Facility located in Dutchess County.

Thereafter, through a series of motions to change venue, the matter was transferred to this court, Respondent waived a probable cause hearing, and a jury trial was conducted in Erie County during the week of March 2, 2009. The jury, by a unanimous verdict, determined that Respondent is a sex crimes offender who suffers from a mental abnormality. A hearing on the dispositional phase of these proceedings was conducted on April 23, 2009.

Pared to its core, Respondent’s due process challenges to Article 10 relate to the right to confront evidence and cross-examine adverse witnesses, to be heard in a timely fashion, and the right to privacy and confidentiality (with regard to his medical records). Respondent further challenges the standard of proof applicable to the required finding of mental abnormality. Most notably, Respondent seeks to add an additional requirement to MHL §10.07 to require a standard of proof beyond a reasonable doubt as to whether he is a detained sex offender who suffers from a mental abnormality. The thrust of the balance Respondent’s due process arguments is that Article 10 establishes a mechanism for “punishment” based upon past conduct for which he has already been convicted, and forced to serve a prison sentence. This Court is unpersuaded by these arguments.

Respondent asks this Court to second guess the Legislature with respect to the enactment of Article 10 as it applies to this case, and to ignore the fact that the Legislature is presumed to have considered these, and related issues. Moreover, to challenge a Legislative act successfully, a plaintiff must establish that no set of circumstances exists that would render the law valid. Admittedly, a high burden. Here, New York’s objective to create a civil proceeding is evidenced by its designation of the statute as a “civil management” process and the proclamation that “confinement of the most dangerous offenders will need to be extended by civil process.” Moreover, the Legislative findings consistently refer to “civil confinement.” Nothing on the face of the statute suggests that the Legislature sought to create anything other than a civil management scheme designed to provide treatment for the affected individuals, while protecting the public from harm, and the Legislature conferred authority on relevant administrative agencies, rather than the state’s penal system; prima facie evidence of an intention to create a civil legislative scheme. The Supreme Court has made it clear that a legislature’s declaration of the civil nature of confinement may be overcome only where there is “the clearest proof” that the statute is as punitive either in purpose or effect as to negate [the State’s] intention” to deem it civil. In addition, the statutory mechanism set forth (in part) above provides strict procedural safeguards at each stage of the proceedings. Thus, Respondent has failed to meet this high burden. Drug possession was not involved.

Based on the foregoing, it is hereby ordered that Respondent’s motion to dismiss is, in all respects, denied. This constitutes the Decision and Order of this Court. Submission of an order by the Parties is not necessary. The mailing of a copy of this Decision and Order by this Court shall not constitute notice of entry.

If you are charged with a sex crime, seek the assistance of a New York Criminal Attorney and New York Sex Crime Attorney at Stephen Bilkis and Associates.